TERRITORIAL INTEGRITY AND CONSENT IN THE CHAGOS ADVISORY OPINION

2020 ◽  
Vol 69 (1) ◽  
pp. 221-238
Author(s):  
Robert McCorquodale ◽  
Jennifer Robinson ◽  
Nicola Peart
Keyword(s):  
International Law ◽  
Self Determination ◽  
Special Focus ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Territorial Integrity ◽  
Customary International Law ◽  
The People ◽  
International Court ◽  
The Right

AbstractA key element of the right to self-determination is territorial integrity. This has usually been considered solely in relation to the territorial integrity of an existing State seeking to resist claims by peoples for the right to self-determination. Yet the Chagos Opinion by the International Court of Justice examines a different type of territorial integrity—that of the colonial territory itself. This article explores the consequence of the Court's view that the territorial integrity of the colonial territory is a matter of customary international law, and that any division, integration or other disruption of that colonial territory after December 1960 is unlawful, without the free and genuine consent of the people of the colonial territory. In particular this article seeks to explore what the Chagos Opinion means in terms of the territorial integrity of a colonial territory. It also examines the required conditions for ascertaining a free and genuine consent of the people of that territory, and the legal effects of not complying with them. There is also consideration of the implications for other situations from the clarification of customary international law in the Chagos Opinion, with a special focus on West Papua.

scholarly journals SELF-DETERMINATION, THE CHAGOS ADVISORY OPINION AND THE CHAGOSSIANS

2019 ◽  
Vol 69 (1) ◽  
pp. 203-220
Author(s):  
Stephen Allen
Keyword(s):  
International Law ◽  
Self Determination ◽  
European Convention ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Customary International Law ◽  
International Court ◽  
The Uk ◽  
The Right ◽  
Chagos Archipelago

AbstractIn its Chagos Advisory Opinion, the International Court of Justice (ICJ) ruled that the UK's detachment of the Chagos Archipelago from the colony of Mauritius on the eve of independence constituted a violation of customary international law (CIL). This article analyses the Court's approach to establishing the emergence and content of the right to self-determination in this frustrated case of decolonisation. It goes on to examine the argument that self-determination's peremptory character has decisive consequences in this specific context—a contention which found favour with several judges in their Separate Opinions. The article explores the extent to which the claims and counterclaims, made during the advisory proceedings, turned on countervailing readings of not only the key sources of custom but also of the principle of inter-temporal law. The final sections consider the significance of the Chagos Opinion for the Chagossians, both in relation to the Archipelago's resettlement and for their outstanding appeal in the UK courts (where the European Convention on Human Rights performs a pivotal role).

Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (I.C.J.)

2019 ◽  
Vol 58 (3) ◽  
pp. 445-602
Author(s):  
Stephen Allen
Keyword(s):  
International Law ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Customary International Law ◽  
The United Kingdom ◽  
International Court ◽  
Un General Assembly ◽  
The Right ◽  
Chagos Archipelago ◽  
Legal Consequences

In its Chagos Advisory Opinion, the International Court of Justice (ICJ) addressed two questions posed in a request from the UN General Assembly. First, had Mauritius's decolonization been completed when it gained independence in 1968, after the excision of the Chagos Archipelago? Second, what were the legal consequences flowing from the United Kingdom's continued administration of the Archipelago? It was thought that the Court might shy away from giving an Opinion in this case as, arguably, it concerned a bilateral sovereignty dispute that the United Kingdom had not agreed to have resolved by judicial decision. However, as it turned out, the Court delivered surprisingly robust responses to the questions posed. The Opinion—and the numerous Separate Opinions that accompanied it—offer a thorough re-evaluation of the customary international law (CIL) concerning the right to self-determination in cases of decolonization.

The Kosovo Advisory Opinion Scrutinized

2011 ◽  
Vol 24 (2) ◽  
pp. 355-383 ◽  
Author(s):  
JURE VIDMAR
Keyword(s):  
International Law ◽  
Self Determination ◽  
Added Value ◽  
Advisory Opinion ◽  
Legal Doctrine ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Unilateral Declaration ◽  
The Right

AbstractIn the Kosovo Advisory Opinion, the International Court of Justice took the position that Kosovo's unilateral declaration of independence did not violate any applicable rules of international law. This article does not dispute the final finding, but rather critically examines the Court's somewhat controversial reasoning and considers the added value of the opinion for the clarification of legal doctrine in relation to unilateral declarations of independence. An argument is made that the Court's interpretation of the question and the identification of the authors of the declaration had significant implications for the Court's final finding. Yet, the Court cannot be criticized for not answering the question of whether or not Kosovo is a state, whether Kosovo Albanians are beneficiaries of the right of self-determination, or even whether the ‘right to remedial secession’ is applicable. However, the Court may well have implicitly answered that recognition of Kosovo is not illegal.

Internal Self-Determination and the Role of Territorial Autonomy as a Tool for the Resolution of Ethno-Political Disputes

2013 ◽  
Vol 20 (1) ◽  
pp. 5-25 ◽  
Author(s):  
Sia Spiliopoulou Åkermark
Keyword(s):  
International Law ◽  
Institutional Design ◽  
Self Determination ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Political Conflicts ◽  
International Court ◽  
Quality Stability ◽  
The Cold War ◽  
External Actors

Since the end of the Cold War, autonomy arrangements have been increasingly perceived and used as tools for resolving ethno-political conflicts as well as part of the affirmation of indigenous claims and self-determination struggles. One important reason for this is that the all-or-nothing dichotomy of statehood and external self-determination seems to have sustained conflict at least as much as having resolved conflict. However, the theoretical underpinnings of territorial autonomy have not yet been elaborated in international law. While the Canadian Supreme Court started formulating some requirements of what it takes to have a “meaningful access to government” in the Reference re Secession of Quebec case, the Advisory Opinion of the International Court of Justice seems to pull international law back into the perennial discussion of secession, this time dubbed “remedial”. Territorial autonomy as an institution is about more than the division of competences between centre and periphery; it is about creating comprehensive structural solutions and processes of representation, accountability and decision-making. International law needs thus to engage seriously with the conditions influencing the quality, stability and adaptability of territorial autonomy arrangements. Among those are issues of timing; responses to the traumas of conflict; the quality of democratic involvement and institutional design; as well as the influence of external actors.

Part I The UNDRIP’s Relationship to Existing International Law, Ch.1 Who Are ‘Indigenous Peoples’?: An Examination of Concepts Concerning Group Membership in the UNDRIP

2018 ◽  
Author(s):  
Castellino Joshua ◽  
Doyle Cathal
Keyword(s):  
International Law ◽  
Indigenous Peoples ◽  
Group Membership ◽  
Self Determination ◽  
Customary International Law ◽  
The People ◽  
The Status ◽  
United Nations Declaration ◽  
The Right ◽  
The Continuum

This chapter assesses the question of the people and peoples to whom the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) applies, tracking the concepts of person, persons, groups, people, and peoples in international law, and the UNDRIP's contribution to these concepts. The opening section of the chapter illustrates that the status of indigenous peoples in customary international law stands closer to peoples in the continuum between minorities and peoples. Minorities, while gaining the right to protection and promotion of their group identity, do not automatically gain the right to self-determination. Indigenous peoples ought to, but their rights towards this are constrained by state interests.

The International Court of Justice and Peoples

2007 ◽  
Vol 9 (2) ◽  
pp. 157-180
Author(s):  
Timo Koivurova
Keyword(s):  
International Law ◽  
Indigenous Peoples ◽  
Self Determination ◽  
International Court Of Justice ◽  
Collective Rights ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
The Right

AbstractThe article examines how the International Court of Justice (ICJ) has dealt with the concept of peoples and peoples' rights in its jurisprudence. Most prominent has been the Court's role with respect to the right of self-determination and it is this issue that forms the core of the article. A second important question dealt with is the role of indigenous peoples in ICJ case practice, as the struggle by those peoples to gain collective rights is a recent development in international law. Drawing on this analysis, the discussion proceeds to consider the role that the ICJ has played in the development of the rights of peoples in general and what its future role might be in this sphere of international law. The article also examines the way in which the Court has allowed peoples to participate in its proceedings and whether and how its treatment of peoples' rights has strengthened the general foundations of international law.

Frontiers of International Law, Part One: The Chechen People, Continued

1997 ◽  
Vol 10 (1) ◽  
pp. 16-20
Author(s):  
René Lefeber ◽  
David Raič
Keyword(s):  
Human Rights ◽  
International Law ◽  
Self Determination ◽  
Military Force ◽  
Right To Life ◽  
Customary International Law ◽  
Parent State ◽  
The People ◽  
The Law ◽  
The Right

We agree with André de Hoogh that the Chechens did not possess a right to external self-determination prior to the massive indiscriminate use oi military force by Russia in December 1994. At no point have we argued or suggested otherwise. Hence, up to December 1994, the Chechen claim did indeed not meet the conditions set by paragraph seven of the Friendly Relations Declaration. However, the Friendly Relations Declaration needs to be interpreted in view of usus and opinio iuris. In other words, one has to analyse how this paragraph has developed in customary international law. According to our analysis of the law of self-determination, the emergence of a right to external self-determination depends on two cumulative conditions, viz. 1) the serious and persistent violation of the right to internal self-determination and 2) the exhaustion of all total and international peaceful remedies by the people concerned to effectuate its right to internal self-determination. These conditions must be deemed fulfilled if the parent state seriously and massively violates the fundamental human rights and freedoms – in particular by an arbitrary violation of the right to life – of the persons belonging to the people concerned.

Self-Determination, Secession, and Dispute Settlement after the Kosovo Advisory Opinion

2011 ◽  
Vol 24 (1) ◽  
pp. 149-154 ◽  
Author(s):  
RALPH WILDE
Keyword(s):  
International Law ◽  
Security Council ◽  
Dispute Settlement ◽  
Self Determination ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
International Court ◽  
Specific Suggestion ◽  
Principles Of Justice ◽  
State Group

AbstractThis piece provides critical analysis of some of the broader consequences of what is potentially suggested by certain findings in the 2010 Advisory Opinion of the International Court of Justice on ‘Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo’. The focus is on consequences for disputes generally, and disputes relating to self-determination and secession in particular, in either case including disputes that have been made subject to a Security Council-imposed settlement process. In the first place, the piece considers the relatively specific suggestion that sub-state groups are free to unilaterally terminate a Security Council-imposed process aimed at enabling the resolution of a dispute concerning their aspirations to external self-determination, without this termination having to comply with the principles of justice and international law. In the second place, the piece considers the relatively broad suggestion that the act of any sub-state group of declaring independence and seceding from the state within which it is located, without the consent of that state or any other international legal sanction, is likewise not regulated by international law.

The cetacean right to life revisited

2015 ◽  
Vol 11 (1) ◽  
pp. 17-39
Author(s):  
David Mence
Keyword(s):  
International Law ◽  
Scientific Evidence ◽  
Moral Rights ◽  
Legal Rights ◽  
Right To Life ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Doctrinal Development ◽  
International Court ◽  
The Right

AbstractMany cetaceans are borderline persons and, as such, have a right to life. This is partly a normative and partly a positive legal claim. While many philosophers agree that cetaceans possess limited moral rights, it can also be shown that most states already behave as though they possess limited legal rights. The most basic of these, the right to life, reflects shifting contemporary norms – especially given scientific evidence as to cetacean sentience, intelligence and autonomy – and the consolidation of customary international law. The recent decision of the International Court of Justice in Whaling in the Antarctic (2014) includes importantobiter dictato this effect and arguably suggests an avenue for future doctrinal development in this area. Nevertheless, while the cetacean right to life already exists, there are a number of obstacles that preclude its enforcement. Perhaps the most significant of these remain the traditional status of the world's oceans as a global commons and the weak sovereignty of international law.

International Law and Self-Determination in Namibia

1970 ◽  
Vol 8 (4) ◽  
pp. 585-603 ◽  
Author(s):  
U. O. Umozurike
Keyword(s):  
International Law ◽  
Point Of View ◽  
Self Determination ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
The People ◽  
Military Presence ◽  
International Court ◽  
History Of ◽  
South West Africa

Namibia, formerly South-West Africa, continues from the point of view ofinternational law to represent the symbol of violated right. Even though the United Nations has been seized of the matter for many years and the International Court of Justice has been given the opportunity to adjudicate, the problem appears to be as intractable as ever. South Africa has established her administrative and military presence and means to defend what she considers to be her right with all the forces at her command. The country does not lack friends whose direct or indirect support it counts upon. Yet the fundamental issue remains: Are the people of Namibia entitled to self-determination and how may they exercise that right? It will be necessary to refer back to the history of Namibia from the time of the mandate.

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